B-160351, NOV. 17, 1966

B-160351: Nov 17, 1966

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LEONARD WOOD: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 18. YOUR CLAIM WAS DISALLOWED BECAUSE THE RECORDS DID NOT ESTABLISH THAT SUCH OVERTIME WAS AUTHORIZED OR APPROVED BY PROPER ADMINISTRATIVE OFFICIALS. YOUR REQUEST FOR RECONSIDERATION IS PREDICATED PRIMARILY UPON THE FACT THAT DURING THE PERIOD INVOLVED YOUR DAILY REPORTS (FORM 9-1261) OF DUTY PERFORMED WERE "ACKNOWLEDGED AND APPROVED" BY YOUR SUPERVISOR. APPARENTLY YOU BELIEVE SUCH ACTION WAS THE ONLY ACTION NEEDED FOR THE PURPOSE OF OVERTIME COMPENSATION FOR HOURS OF DUTY IN EXCESS OF 40 HOURS PER WEEK. THAT AUTHORITY DELEGATED TO THE INVESTIGATOR-IN-CHARGE FOR SIGNING OR APPROVING THE DAILY WORK REPORT WAS THE AUTHORIZATION OR APPROVAL REQUIRED BY THE FEDERAL PAY ACT OF 1945.

B-160351, NOV. 17, 1966

TO MR. LEONARD WOOD:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 18, 1966, WHEREIN YOU REQUEST REVIEW OF OUR SETTLEMENT OF OCTOBER 7, 1966, WHICH DISALLOWED YOUR CLAIM FOR OVERTIME COMPENSATION FOR THE PERIOD JULY 1962 TO MAY 1965, AS AN EMPLOYEE OF THE DEPARTMENT OF THE INTERIOR, GEOLOGICAL SURVEY, MIDLAND, TEXAS.

YOUR CLAIM WAS DISALLOWED BECAUSE THE RECORDS DID NOT ESTABLISH THAT SUCH OVERTIME WAS AUTHORIZED OR APPROVED BY PROPER ADMINISTRATIVE OFFICIALS.

YOUR REQUEST FOR RECONSIDERATION IS PREDICATED PRIMARILY UPON THE FACT THAT DURING THE PERIOD INVOLVED YOUR DAILY REPORTS (FORM 9-1261) OF DUTY PERFORMED WERE "ACKNOWLEDGED AND APPROVED" BY YOUR SUPERVISOR. APPARENTLY YOU BELIEVE SUCH ACTION WAS THE ONLY ACTION NEEDED FOR THE PURPOSE OF OVERTIME COMPENSATION FOR HOURS OF DUTY IN EXCESS OF 40 HOURS PER WEEK, AND THAT AUTHORITY DELEGATED TO THE INVESTIGATOR-IN-CHARGE FOR SIGNING OR APPROVING THE DAILY WORK REPORT WAS THE AUTHORIZATION OR APPROVAL REQUIRED BY THE FEDERAL PAY ACT OF 1945, AS AMENDED, AND REGULATIONS PRESCRIBED BY THE DEPARTMENT OF THE INTERIOR.

SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, 5 U.S.C. 911 (1964 EDITION), PROVIDED THAT:

"ALL HOURS OF WORK OFFICIALLY ORDERED OR APPROVED IN EXCESS OF FORTY HOURS IN ANY ADMINISTRATIVE WORKWEEK PERFORMED BY OFFICERS AND EMPLOYEES * * * SHALL BE CONSIDERED TO BE OVERTIME WORK * * *"

THE DEPARTMENT OF THE INTERIOR REGULATIONS FOUND IN GEOLOGICAL SURVEY MANUAL, ADMINISTRATIVE SERIES - PERSONNEL, SECTION 374.3.5 ET SEQ. STATE:

"5. AUTHORITY TO APPROVE OVERTIME WORK. EXCEPT IN EXTREME EMERGENCIES * * * OVERTIME REQUESTS REQUIRE ADVANCE WRITTEN APPROVAL AS FOLLOWS:

"A. IRREGULAR OR OCCASIONAL DUTY. (NO WORK SCHEDULE ESTABLISHED).

"/1) FOR PERIODS NOT EXCEEDING 90 CONSECUTIVE CALENDAR DAYS - DIVISION CHIEF OR HIS DELEGATE. * * *

"/2) FOR PERIODS EXCEEDING 90 CONSECUTIVE CALENDAR DAYS - DIRECTOR.

"9. PROCEDURE FOR REQUESTING APPROVAL FOR PAID OVERTIME WORK.

"A. FORM NO. 9-1205 * * * IS TO BE PREPARED IN TRIPLICATE AND SUBMITTED THROUGH DIVISION CHANNELS FOR APPROVAL BY THE AUTHORIZING OFFICIAL. REQUESTS TO THE DIRECTOR ARE SUBMITTED THROUGH THE BUREAU PERSONNEL OFFICE.'

SECTION D OF CHAPTER 9 OF THE MANUAL TREATS TIME AND LEAVE REPORTING. THE TIMEKEEPER IS ASSIGNED THE TASK OF COMPLETING FORMS 1130, AN EXAMPLE OF WHICH IS SET OUT IN THE REGULATION. THIS FORM CONTAINS A SPACE FOR ALL OVERTIME WORKED.

THE RECORD FAILS TO DISCLOSE ANY WRITTEN ORDERS AUTHORIZING OVERTIME WORK OR ANY FORMS 9-1205 APPROVING THE OVERTIME SERVICE. ADDITIONALLY, THE ADMINISTRATIVE REPORT SAYS THAT YOUR TIME AND ATTENDANCE RECORDS (FORM 1130) DO NOT SHOW ANY OVERTIME. THERE IS NO INDICATION THAT ANY REQUEST FOR AN AUTHORIZATION OR APPROVAL OF OVERTIME WAS EVER MADE. ACCORDINGLY, THE APPROVAL BY AN INVESTIGATOR IN-CHARGE ON A DAILY WORK REPORT FORM 9- 1261, AN EMPLOYEE WHO WE UNDERSTAND HAD NO AUTHORITY TO AUTHORIZE OR APPROVE OVERTIME WORK, DOES NOT CONSTITUTE THE STATUTORY "ORDERED AND APPROVED" REQUIREMENT FOR THE PAYMENT OF OVERTIME COMPENSATION.

THE COURT OF CLAIMS HAS HAD OCCASION TO CONSIDER CLAIMS SUCH AS YOURS. IN A RECENT CASE, BILELLO V. UNITED STATES, CT.CL. NO. 198-63, DECIDED ON MARCH 18, 1966, THAT COURT WAS CONFRONTED BY THE CLAIMS OF SEVERAL SECURITY GUARDS FOR OVERTIME WORKED PURSUANT TO VERBAL ORDER TO PERFORM OVER A PERIOD OF 11 YEARS. IN THEIR CASE ALSO, DESIGNATED OFFICIALS WERE REQUIRED TO APPROVE, IN ADVANCE AND IN WRITING, ALL OVERTIME WORKED AND ON A DESIGNATED FORM. IN DENYING THE PLAINTIFFS' CLAIMS THE COURT ANALYZED SEVERAL ANALOGOUS CASES AND STATED:

"THE COMMON DENOMINATOR DERIVED FROM THESE RESULTS IS THAT A REGULATION REQUIRING APPROVAL OF OVERTIME BY A DESIGNATED OFFICIAL BEFORE IT CAN BE PAID IS BINDING ON CLAIMANTS UNLESS THE REGULATION IS UNREASONABLE OR THE OFFICIAL WHO HAS WITHHELD FORMAL WRITTEN APPROVAL HAS NEVERTHELESS ACTIVELY INDUCED AND ENCOURAGED THE OVERTIME. MERE KNOWLEDGE ON HIS PART, WITHOUT AFFIRMATIVE INDUCEMENT OR WRITTEN SANCTION, WOULD NOT SEEM TO BE SUFFICIENT. * * *"

IN RESPONSE TO THE PLAINTIFFS' CLAIM THAT IT WAS A BREACH OF DUTY ON THE PART OF THEIR SUPERVISORS NOT TO SUBMIT THEIR OVERTIME CLAIMS TO THE PROPER OFFICIAL THE COURT SAID:

"* * * ADMINISTRATIVE EFFICIENCY REQUIRES OBSERVANCE OF ORDERLY FORMS, AND BY VOICING THEIR DEMANDS THROUGH PROPER CHANNELS THE PLAINTIFFS CONCEIVABLY COULD HAVE SECURED A RULING WHICH WOULD HAVE RESULTED EITHER IN AN ORDER FOR OVERTIME COMPENSATION OR IN A JUSTIFIED REFUSAL ON THE PART OF THE PLAINTIFFS TO CONTINUE PERFORMING OVERTIME WORK WITHOUT COMPENSATION.'

IN TABBUTT ET AL. V. UNITED STATES, 121 CT.CL. 495 (1952), A CASE INVOLVING CLAIMS FOR OVERTIME COMPENSATION BY INVESTIGATORS OF THE TREASURY DEPARTMENT, THE COURT WAS PRESENTED WITH A FACTUAL SITUATION SIMILAR TO YOURS. THE PROPER OFFICIALS HAD NOT ORDERED OR APPROVED THE OVERTIME, NOR HAD REQUEST BEEN MADE FOR OVERTIME. THE OPINION STATES THAT:

"* * * THE ONLY SEMBLANCE OF AN APPROVAL BY ANY OFFICIAL WAS THE APPROVAL BY THE INVESTIGATOR-IN-CHARGE OF * * * THE DAILY REPORTS MADE BY THE PLAINTIFFS. HIS APPROVAL OF THESE DAILY REPORTS COULD HARDLY BE SAID TO TAKE THE PLACE OF AN ORDER FOR THESE MEN TO WORK OVERTIME, OR OF AN APPROVAL OF THEIR CLAIM TO COMPENSATION FOR HAVING DONE SO. * * *"

THEREFORE, SINCE YOU HAVE NOT FURNISHED ANY EVIDENCE THAT YOU WERE SPECIFICALLY REQUIRED TO PERFORM OVERTIME SERVICE BY PROPER AUTHORITY OUR ACTION OF OCTOBER 7, 1966, DISALLOWING YOUR CLAIM MUST BE AND IS SUSTAINED.